4. The People, the Parliament and the Courts Flashcards
factors that affect the ability of parliament to make laws
-the roles of the houses of parliament
-the representative nature of parliament
-political pressures
-restrictions on the law-making powers
roles of the lower house
-intiate bills (usually)
-determine the goverment
-make laws that represent the views of the people
-scrutinise government administration
roles of the upper house
-act as a house of review
-initiate bills (sometimes, not regarding money)
-examine bills through committees
composition of the lower house effects summary
-maj in lower house, bills introduced are generally passed by the lower house
-maj in both houses, has power to pass any laws it likes with only public pressure impeding it
-min can be forced to alter its agenda to gain minor party support
composition of the upper house effects summary
-maj in the upper ouse may result in less scrutiny
-min in the upper house may result in more scrutiny
-min can block bills or force amendents
-increased power to crossbench
hung government
neither major political party wins a majority of seats in the lower house
-parties must seek support of independents/cross-bench
hostile upper house
the government doesn’t hold a majority in the upper house
balance of power (hostile upper house)
minor parties or independents hold a disproportionate amount of power
strengths of the parliamentary law-making process
-provides opportunity to check bills and suggest amendments
-thorough debating can take place
-enables law reform to be fast with support of both houses
-can be slow
-hostile upper house can restrict law-making ability
representative government
parliament is elected by the people and therefore must represent the people
the views of the majority
-may cause laws to be introduced which are popular rather than controversial
-individuals, pressure groups and the media can influence law reform
-mps may be hesitant to introduce law in areas with vocal groups who do not support the decision
regular elections
-allow a government that does not represent the views of the majority to be voted out of office
-fixed terms give governments a specified period to implement their programs, but not for longer-term
-compulsory voting helps to ensure the government has the support of the majority
domestic political pressures
-individuals and groups can use demonstrations, petitions and court action to influence law reform
-populist governments can be reluctant to pass controversial laws
-vocal minorities can unduly influence government and legislative agendas
internal political pressures
-denial of a conscience vote can detract from representative government
-internal party friction can encourage debate, but also distract government from legislative priorities
international political pressures
-ratifying international treaties can improve the quality of domestic laws, but also make them harder to pass
-internal organisations can and powerful nations can pressure governments to act with certain interests in mind
residual powers
belong solely to the states
exclusive powers
belong solely to the federal parliament
jurisdictional limitations
-ensure parliament can only legislate within their power
-allow individuals and groups to challenge legislation potentially ultra vires
-expensive and time consuming
specific prohibitions
-restrict the law-making powers of parliament and indirectly protects individual rights
-section 109, 128
statutory interpretation (def)
when existing statues requires interpretation so that it can be applied to the case
The doctrine of precedent (def)
when judges or courts interpret statutes, a new legal principle is established
stare decisis
where appropriate, judges should stand by previous decisions to ensure common law is consistent and predictable
ratio decidendi
a statement made by the judge which outlines the decisions and the legal reasoning behind the decision (the principle which must be followed in the future)
obiter dictum
statements made in court judgements which may also be persuasive, but do not form the official ratio decidendi
binding precedent
precedent that must be followed by all lower courts in the same vertical court hierarchy for all cases with similar material facts, regardless of whether or not the judge agrees with the reasoning
persuasive precedent
precedent that is not binding but may still be used by a judge to influence their decisions
reasons precedent may be persuasive
-set by a court in a different hierarchy (eg another state or country)
-set by lower courts or courts of the same standing in the same hierarchy
ways courts can avoid a precedent
-distinguishing
-reversing (same case)
-overruling (different case)
-disapproving
distinguishing a precedent
finding a difference in material facts between cases
reversing a precedent
judges hearing a case on appeal may disagree with the previous precedent set by a lower court and change it, creating new precedent
overruling a precedent
judges in superior courts deciding to not follow binding precedent, thereby setting a new precedent for all lower courts
disapproving a precedent
-judges in lower courts may express their dissatisfaction with binding precedent
-does not actually avoid precedent
reasons for statutory interpretation
-to resolve problems as part of the drafting process
-to resolve problems that occur when a court is applying an Act of Parliament
outcomes of statutory interpretation
-words of prases contained in disputed acts are given meaning
-the decision reached is binding on both parties and creates precedent
-the meaning of the law can be broadened or narrowed
factors that affect the court’s ability to make law
-the doctrine of precedent
-judicial conservatism
-judicial activism
-cost and time in bringing a case to court
-the requirement for standing
doctrine of precedent (assists ability of courts to make law)
-ensures consistency and predictability
-judges can make law through the establishment of precedent
-courts can compliment legislation
doctrine of precedent (restricts ability of courts to make law)
-lower courts must follow a binding precedent
-identifying relevant precedent can be time-consuming
-legislation can only be interpreted when a case is brought before the courts
judicial conservatism
the belief that it is a judge’s role to find and apply the law rather than make it
judicial conservatism (assists the ability of courts to make law)
-helps maintain stability
-lessens the possibility of appeals on questions of law
judicial conservatism (restricts the ability of courts to make law)
-restricts major changes
-can discourage judges from considering a new range of social and political factors
-may be seen as not progressive enough
judicial activism
the belief that it is a judge’s role to make legal decisions or create law where there is no applicable law
judicial activism (assists the ability of courts to make law)
-allows judges to interpret statutes in a way that recognises the rights of the people
-allows judges to consider a broad range of social and political factors
judicial activism (restricts the ability of courts to make law)
-can lead to more appeals on questions of law
-can lead to more radical changes that do not reflect the community’s values (judges are not elected)
time and cost factors (assists the ability of courts to make law)
-high cost may mean that only legitimate claims are pursued
-courts can make law relatively quickly
time and cost factors (restricts the ability of courts to make law)
-high costs can deter litigants who cannot afford these costs
-some courts, particularly appeal courts, can take months to hear complex cases
the factors in the relationship betweeen courts and parliament in law-making
-the supremacy of parliament
-the ability of courts to influence parliament
-the interpretation of statutes by courts
-the codification of common law
-the abrogation of common law
the supremacy of parliament
-parliament decides court jurisdiction and powers
-can override common law with the exception of High Court matters
-separation of powers allows courts to remain independent
the ability of courts to influence parliament
-comments made by judges when passing judgements, either as part of stare or obiter, may inspire reform
-decision may also highlight a problem that leads parliament to change the law
-judicial conservatism + activism
statutory interpretation (relationship between court and parliament)
may broaden or narrow the meaning of statutes
codification
as the supreme law making body, parliament can make law that confirms a precedent set by the courts
abrogation
parliament has the power to pass legislation which overrides common law principles
reasons for law reform
-changes in beliefs and values
–marriage equality 2017
-changes in social, political and economic circumstances
-advances in technology
-greater need for community protection
petitions
str:
-simple, inexpensive
-must be presented to parliament after given to MP
wk:
-no obligation to be acted on
-hundreds of petitions every year
demonstrations
str:
-attract large numbers
-increase social awareness
wk:
-difficult and time-consuming
-public inconvenience may decrease effectiveness
courts in law reform
str:
-may gain media coverage
-judges can influence parliament
wk:
-common law can be abrogated
-judges are not elected
social media
str:
-massive scale
-connects people around the world
wk:
-ethics are not generally followed
-minimise complexity of legal issues
traditional media
str:
-informs people about the need for reform
-forums for parties and members to discuss
wk:
-can be biased
vlrc overview
-vic law reform commission act 2000
-ag asks for reforms (referring)
-80% of ag, 20% from community law reform projects
-use the advice of professionals
-vlrc has no authority
~80% of recommendations are followed
vlrc recommended reforms
committals take place in final court
-reduces time and money, streamlines hearing process
vlrc str
-gvt likely to act on suggested reforms
-independent
-highly influential
vlrc wk
-no power
-time consuming
-limited in resources
committees overview
-group of gvt and non-gvt members tasked with investigating a specific issue
-process
–terms of reference (statement of what to investigate)
–publicised
–hearing
–final report
types of committees
-standing
–ongoing, members from both houses
-select
–specific issues as they arise
-joint investigation
–each parliamentary term, both houses
–scrutiny of acts and regulations (safe injection sites)
-domestic
–internal operations and practices
committees str
-investigate a wide range of issues
-vital role in ensuring bills do not impede on human rights
-allow MPs to be involved
committees wk
-MPs of governing party may dominate
-restricted to terms of reference
-no obligation from gvt
